What a Code of Practice is, and what it is not

What a model Code is

Safe Work Australia writes model Codes of Practice as practical guidance on achieving the standards of health and safety the model WHS Act and Regulations require. They are written for duty holders, in plain language, hazard by hazard: falls, noise, confined spaces, hazardous manual tasks, plant, hazardous chemicals.

A Code is deliberately more concrete than the Act it sits under. The Act says a risk must be eliminated or minimised so far as is reasonably practicable; the Code describes what people actually do about a particular hazard, which is what makes it usable by someone who runs a warehouse rather than a legal department.

A model Code is not automatically in force where you are

This is the part most often skipped. Safe Work Australia's own Codes carry the statement: "To have legal effect in a jurisdiction, the model Code of Practice must be approved as a code of practice in that jurisdiction. Check with your WHS regulator to find out if this Code of Practice has legal effect in your jurisdiction."

So "the Code says X" is only half a sentence. The full one is "the model Code says X, and my jurisdiction has — or has not — approved it". Different states have approved different subsets, and Victoria, running its own Occupational Health and Safety Act 2004, uses compliance codes of its own rather than the model set. Checking which applies to you is a look-up on your regulator's site, worth doing before quoting a Code at anyone.

What weight an approved Code carries

An approved Code is not a statute, and breaching one is not in itself an offence in the way breaching a regulation is. What it does is set the benchmark. A Code is treated as evidence of what is known about a hazard, its risks and how to control them, and an inspector or a court can refer to it as evidence of what was reasonably practicable in the circumstances.

In practice that means departing from an approved Code is possible but it puts the burden on you to show that what you did achieved an equivalent or better standard. "We do it differently" is an argument you have to be able to run, not a position that needs no explanation.

This is also why a Code is a better citation than a vendor claim. If a supplier says a product is "required", the question to ask is which instrument requires it — an Act, a Regulation, an approved Code, or nobody.

• Model Code: written nationally, no legal effect until a jurisdiction approves it
• Approved Code: the benchmark a regulator measures reasonably practicable against
• Guidance material: useful, published by the regulator, and lower in the hierarchy again

Code, guidance material and Standard are three different things

These get used interchangeably and should not be. Safe Work Australia publishes guidance material as well as Codes, and guidance sits lower — helpful, official, but not carrying an approved Code's evidentiary role. The warehousing traffic material is a good example: it is a suite of guides rather than a Code, and describing it as a Code overstates it.

An Australian Standard is different again. It is written by Standards Australia, sold commercially, and carries legal weight only where an Act, a Regulation or an approved Code picks it up — which is the subject of how a Standard ends up carrying legal weight. The racking standard is the case this site deals with most, and it is worth understanding exactly how it is referenced rather than assuming.

The three-way distinction matters most where a category explainer starts sounding like an obligation. Who must hold a safety data sheet comes from a regulator page; segregation practice for stored chemicals is largely standards territory; and telling the two apart is what stops a page from inventing a duty.

Using a Code without over-reading it

A Code tells you what is known about a hazard. It does not tell you what is happening at your site, and no Code contains the facts that decide most compliance questions — the age of your building, the quantities you hold, what your workers actually do on a shift.

The asbestos register trigger is a clean example. The regulator publishes the trigger precisely; whether your building falls on one side of it or the other is a fact about your building, not a fact in the document. Reading the Code correctly and then applying it to a site you have not seen are two different acts, and only the first belongs on a web page. Where the second is needed, what each regulator actually publishes is the better starting point than a national summary.

Common questions

Is a Code of Practice legally binding?

Not in the way an Act or Regulation is. A model Code has no legal effect in a jurisdiction until that jurisdiction approves it, and Safe Work Australia's Codes say so on their face. Once approved, a Code is used as evidence of what is known about a hazard and what was reasonably practicable, which gives it real weight without making it a statute.

Can I do something different from what an approved Code says?

Generally yes, provided the alternative achieves an equivalent or better standard of health and safety. The practical effect is that you carry the burden of demonstrating that, which is a different position from simply following the Code.

Does Victoria use the model Codes?

Victoria did not harmonise with the model WHS laws and operates under its own Occupational Health and Safety Act 2004, with its own compliance codes and regulator guidance. Treating a model Code as automatically applicable there is a mistake.

Is an Australian Standard a Code of Practice?

No. Standards are written and sold by Standards Australia. They carry legal weight only where legislation or an approved Code picks them up, and they are not published by a regulator. The two are cited very differently and should not be described in the same breath.

Read next

• how a standard becomes law
• the standard for automatic fire sprinkler systems
• AS/NZS ISO 45001
• who is legally responsible for safety on the floor
• assessing and controlling a hazard
• the plant Code of Practice